Petitioners Reply Brief — In re Fisher

SD ten atm,

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No. 80-1044

IN THE SUPREME COURT OF THE

UNITED STATES

1980-81 Term

In re WILLIAM L. FISHER,

individually, and as

administrator of the

estate of Therese deL.

Fisher, deceased, etc,

On Writ, alternatively, of Prohibition,

Mandamus, Superintending Control or

Common Law Certiorari to the United

States Court of Appeals for the Sixth

Circuit

PETITIONER'S REPLY

TO INSURER'S RESPONSE

WILLIAM L. FISHER, Esq.

Attorney at Law

Petitioner, in pro per

1051 Naughton St. #202

Troy, Michigan 48084

(313) 689-8550

7%

TABLE OF CONTENTS

Index to Authorities. . ...e.«.e«.

Petitioner's Reply to

BnBUrer’ ®: ROGpemees . © 6 6 © 0 ee

INDEX TO AUTHORITIES

Statutes:

Page

28 USC 1332 * . e 7 . - . . o . . .

28 USC 1447(c) ee A ‘eee OM te on a a Po oe

Court Rules:

Rule 23.1 of the U.S. Supreme Court,

Court + * e . * 2 * - + * . ° 7 . *

Cases Cited:

Ex parte Simons 247 US 231. . ..e.

Maryland v Soper (No. 1) 270 US 9.

Owen ag ey & Erection Co,

vw Breger 539 US: 1008. 2.06655 8s

Provident Tradesmen Bank & Trust

Co. v Patterson 390 US 102. ....

Thermtron Products v Hermansdorfer

423 US 336 = * - . . 7 a . . . 7 . a

i

1

NoOn

4

4

PETITIONER'S REPLY TO INSURER'S RESPONSE

Now comes petitioner and, in reply

to insurer's response, shows unto the

Supreme Court as follows:

1

Said response” is predicated upon a

Supposed showing of jurisdiction in the

Ime Rules of the Supreme Court of the

United States pertaining to procedure on

certiorari say:

"The order may be a summary

disposition on the merits."

Rule 23.1

Petitioner doesn't know how this could

be possible because issues on the merits

haven't been presented as yet via facts,

questions presented and briefs.

Insurer's response presents a "Statement

of the Case" as though the merits were

being decided. Its allusion to Petition-

er's lack of "collision" coverage is a

deliberate dodge or cover-up because it

knows its insured (Petitioner) could

never purchase "collision" coverage for a

non-owned vehicle belonging to a third

party.

Insurer is dishonest to the U.S. Supreme

Court in citing an alleged exclusion to

public liability coverage because it:

(1) contravenes the law and public policy

of Michigan; and (2) pertains to "property"

other than an automobile and is therefore

inapplicable.

On the merits, insurer will be found by

the U.S. Supreme Court to be a cheat which

was aided and abetted in its cheating by

the lower federal courts.

lower federal courts. Insurer assures the

Supreme Court of such jurisdiction with-

out disclosing that the Sixth Circuit

refused to decide such issue,

The only comment insurer makes about

the Court of Appeals' decision on rehear-

ing is on page 2 of its response (last

three lines) which, when corrected, reads:

"His (Petitioner's) subsequent

petition for rehearing en banc

based on jurisdictional grounds

was denied by the Court of Ap-

peals without deciding such

grounds." (Emphasis supplied).

Insurer's assurance to the Supreme

Court of jurisdiction in the lower federal

courts is both a bit ludicrous considering

that they themselves (the lower federal

courts) give no such assurance and much

like the insurance it sells -- untrust-

worthy. Insurer harps an old tune found

in some of the lower federal courts’

Singsongs about said Section 1332, to

a

wit: that its purpose is limited to

correcting overcrowding of the federal

courts in Louisiana and Wisconsin only.

The fourteen year old should-be-

graveyarded White case and cases spawned

thereby are relied upon by insurer to

thus abnormally limit the proper scope

and beneficial effect of said Section

1332.

The Supreme Court should use the

instant case to give the proper intre-

pretation of said Section 1332 and put

to rest for good all pro-diversity

thinking in the federal courts.

Even the Supreme Court has not been

as anti-diversity in its thinking as said

section 1332 warrants so that it is little

wonder that there is so much pro-diversity

thinking in the lower federal courts.

For example, while this court (maj-

ority opinion, that is) was "right on" in

oe

Owen Equipment & Erection Co. v Kroger

434 US 1008, its pro-diversity thinking

in Provident Tradesmen Bank & Trust Co. v

Patterson 390 US 102 caused it to overlook

the fact that a sham device was employed

to "create" a fake diversity, to wit:

purposeful omission of the automobile

owner (whether a dispensible or indispen-

Sible party) as a defendant to fabricate

a paper diversity case.

Pro-diversity reasoning in Thermtron

Products v Hermansdorfer 423 US 336°

prevented the three dissenters views

from carrying the day. Even the latter

failed to argue that removal of a state

court matter to an overcrowded federal

2tn this case petitioner's counterpart

sought an extraordinary writ in the Sixth

Circuit but not in the Supreme Court; yet

the latter issued the same. Petitioner

submits that, if this court believes he

should have sought a statutory certiorari,

the same should issue in the same manner,

i.e. without discussion and with alacrity.

when

court can indeed be considered "improvident"

within the meaning of Section 1447(c).

In the instant case, the Supreme

Court should take jurisdiction not only

to right the horrendous wrong done peti-

tioner by the lower federal ceurts in

refusing to decide subject matter juris-

diction and ignoring, inter alia, strong

public policy of Michigan, whereby to let

insurer escape statutorily imposed obli-

gations, but also to place such construc-

tion upon said Section 1332 as proposed

in footnote 4 (page 34) of petitioner's

petition, whereby to eliminate corporations

entirely from its operation or to read it

such that any corporate place of business

is “principal” if the corporation is

established sufficiently to be amenable

to state court process. At least it

Should decide whether the instant remov-

al petition is insufficient as petitioner

claims, if not fraudulent, in view of the

ey

clear words of said Section 1332 making

insurer a citizen of Michigan in this

3

In the instant case petitioner has

case,

amply dcmonstrated a clear and indisputable

surely the court noted insurer's at-

tempted upgrading of the bare ipse dixit

it used in its removal petition to

supposedly confer jurisdiction upon the

federal courts.

The bare ipse dixit in its response (page

3 lines 18 and 19) reads:

",..ewnose principal office and

rincipal place of business is

Pn the State of Nebraska." (em-

phasis supplied).

The bare ipse dixit in its removal peti-

tion (page 23a of petitioner's petition)

reads:

",.ewith its principal office

and place of business in the

City of Omaha, State of Nebraska..."

This bare ipse dixit made by one having

no official position with insurer and

without stating operative facts is a far

more deficient removal petition than the

one in Maryland v Soper (No. 1) 270 US 9

held "not sufficiently informing and

specific to make a case for removal". In

respect to the cited case, petitioner

queries this court whether Justice Taft's

recommendation of “more liberal use of

mandamus" should not be applied to civil

cases now when the quality of justice

dispensed in the federal courts has

reached a crisis from overcrowding.

«6—

right to the extraordinary writ prayed

for though he has not specified the form

it should take. Petitioner submits that

it could well be prohibition to prohibit

the wrongful assumption of jurisdiction

by the lower federal courts or common law

certiorari to bring up the whole record

and dispose of the case on its merits

based upon the original jurisdiction of

the state court of first instance. [t

matters little as to the form of the wit"

as long as it is equal to its great

remedial task of preventing the grave

miscarriage of justice in the instant

case of the lower federal courts’ “refus-

ing to decide" the issue of subject

matter jurisdiction while denying

petitioner, inter alia, his damages for

insurer's wrongful refusal to defend.

Petitioner is entitled to a jury

tex parte Simon 247 US 231

=

trial on this issue. Deprivation of a

jury trial was the basis for a mandamus

from this court in Ex parte Simons, supra.

The latter pales in comparison to the

hurt done petitioner in the instant case.

The order in Ex parte Simons, supra, was

interlocutory while in the instant case

it is final and entered without jurisdic-

tion. The summary judgment against pe-

titioner of two successive federal courts

does more than deprive him of a jury

trial on the issue of insurer's bad

faith conduct toward its insured; it

finally and forever dissolves a state

court judgment against plaintiff's

decedent and bars his right as adminis-

trator of the estate of plaintiff's

decedent to collect said judgment filed

as a claim against said estate.

If the Supreme Court not intervene

to give righteous judgment in the instant

case how else will be upheld the credit

-8.

of the federal judiciary?

WHEREFORE, the extraordinary writ

prayed for in petitioner's petition

should issue,

Respectfully submitted,

WILLIAM L. FISHER, Esq.

Petitioner in pro per

1051 Naughton St. #202

Troy, Michigan 48084

(313) 689-8550

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